DIAZ DE GOMEZ V. WILKINSON

THE COURT OF APPEALS FOR THE FOURTH CIRCUIT REMANDS THE CASE OF DIAZ DE GOMEZ V. WILKINSON AFTER THE BOARD OF IMMIGRATION APPEALS DENIES ASYLUM TO A GUATEMALAN REFUGEE

Richmond, Virginia – On February 8, 2021, the Court of Appeals for the Fourth Circuit reviewed and remanded the case of Diaz de Gomez v. Wilkinson, concluding that the Board of Immigration Appeals (“BIA”) erred in its decision to reject Ms. Diaz de Gomez’s appeal for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) because she had not established that the persecution she suffered was on account of a statutorily protected social group or that the Guatemalan government was unable and unwilling to protect her.

The United States Citizenship and Immigration Services (“USCIS”) cites that foreign nationals are eligible to apply for asylum within one year of arrival to the United States under 8 U.S.C. § 1101(a)(42)(A) if the following three requirements are established:

1. The foreign national was persecuted or has a well-rounded fear of persecution;
2. The persecution or well-rounded fear of persecution is due to one of the following protected grounds: race, religion, nationality, membership in a particular social group, or political opinion; and
3. The persecution or well-rounded fear of persecution is by an organization that the government of origin is unable or unwilling to control.

Anita Elizabeth Argueta Diaz de Gomez, a primary school teacher from Guatemala, applied for asylum, withholding of removal, and protection under the CAT upon unlawful entry to the United States in 2015. Her application was based on a series of death threats and attempted extortion by a Mexican gang operating in Guatemala, known as the Zetas, which began after she and her family witnessed a gang-related mass killing in 2008.

Following this particular event, Ms. Diaz de Gomez and her family began to receive death threats from Zetas if they were to report what they had seen. Weeks later, the Zetas targeted Ms. Diaz de Gomez’s husband and brother, demanding that they work for the gang or they would be killed and their families would be harmed. Both Ms. Diaz de Gomez’s husband and brother refused to join the gang, leading Mr. Diaz de Gomez’s husband to flee to the United States in 2010 and Ms. Diaz de Gomez’s brother to be kidnapped, beaten, mutilated, and murdered by the Zetas in 2015.

The Zetas then targeted Ms. Diaz de Gomez, who had remained in Guatemala to continue her work as a teacher. Ms. Diaz de Gomez was stalked by gang members and received death threats in person, by telephone, by text message, and in writing. According to her testimony before the Court, the Zetas believed that Ms. Diaz de Gomez’s position as a teacher would have made it easier for her to traffic drugs. But when she refused to comply with their demands, the Zetas began targeting Diaz de Gomez’s parents, threatening to kill one of their children if they did not meet the gang’s demands for money.

Ms. Diaz de Gomez reported the death threats and attempted extortion by the Zetas to two different law enforcement authorities who ultimately took no action against the gang members who had been targeting her and her family. Shortly after, Ms. Diaz de Gomez was confronted by the Zetas while visiting her brother’s grave and was told that she would be killed, like her brother was killed, if she did not comply with their demands to traffic drugs. In her refusal to do so, Ms. Diaz de Gomez fled to the United States in 2015.

The Department of Homeland Security (“DHS”) charged Ms. Diaz de Gomez with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for entering the United States without valid entry documents. During her appearance in Immigration Court, the presiding Immigration Judge (“IJ”) denied her application for asylum, withholding of removal, and protection under the CAT, citing that the harm Ms. Diaz de Gomez was not on account of a statutorily protected social group or that the Guatemalan government was unable and unwilling to protect her.

On appeal, the BIA agreed and affirmed the IJ’s decision. Ms. Diaz de Gomez then petitioned for review by the Court of Appeals for the Fourth Circuit. In its review, the Fourth Circuit disagreed with the BIA, citing the BIA’s failure to apply long-standing precedent for obtaining relief from removal and concluding that Ms. Diaz de Gomez had established all three requirements for asylum:

1. The Fourth Circuit held that death threats qualify as past persecution, confirming that Ms. Diaz de Gomez was persecuted in Guatemala;
2. The Fourth Circuit rejected the BIA’s “excessively narrow” view of the nexus requirement, holding that a foreign national’s nuclear family qualifies as a particular social group and concluding that Ms. Diaz de Gomez’s familial ties were “at least one central reason for the feared persecution;” and
3. The Fourth Circuit concluded that the Guatemalan government was unwilling and unable to protect her from persecution based on their lack of action, consistent with the evidence of country conditions which substantiated the Zetas’ known influence over local government and law enforcement officials in Guatemala.

Based on its review and findings, The Fourth Circuit remanded the case of Diaz de Gomez v. Wilkinson to the BIA for further consideration so that Diaz de Gomez may receive the protected benefit of asylum, withholding of removal, and protection under the CAT.

If you have been charged with removability, your future in the United States is in jeopardy. It is important to seek the expertise of an experienced immigration attorney who understands the complexities of U.S. immigration laws and will be able to determine your best options for remaining in the United States. Contact The Law Office of Eric M. Mark today to schedule a free, 10-minute consultation.

The Law Office of Eric M. Mark is located at:

201 Washington Street

Newark, NJ 07102

(973)-453-2009

BY APPOINTMENT ONLY:

Jersey City, New Jersey